TRANSCRIPT

JIM LEHRER: The Supreme Court’s affirmative action decision is first tonight. The court in a seven to two vote let stand an appeals court ruling that struck down an admissions plan at the University of Texas Law School. That plan, which the lower court called “unlawful reverse discrimination,” was designed to boost enrollment of blacks and Mexican-Americans. We get two perspectives now on what the Supreme Court did about it today. Theodore Shaw is the associate director of the NAACP Legal Defense Fund. Clint Bolick is the litigation director of the Institute of Justice. Mr. Shaw, was today’s decision a blow to affirmative action?

THEODORE SHAW, NAACP Legal Defense Fund: I don’t believe so. The Supreme Court today declined to endorse the view of the Fifth Circuit that race can never be considered in admissions. The program that was declared unconstitutional by the lower court was a program that, in fact, did not comply with Bacche. It is possible–

JIM LEHRER: Bacche, which was an earlier decision of the Supreme Court.

MR. SHAW: That’s right. Bacche is the case in 1978 where the Supreme Court said that race was an appropriate consideration as one of many considerations in college and law school and medical school admissions. And what the Supreme Court did here was simply to decline the opportunity to reverse that case. It does leave the law in the Fifth Circuit somewhat murky, but that will be determined at a later date. The program at issue in this case was a program that was poorly crafted and implemented. By the time the case went to the Fifth Circuit, no one was defending it. It is possible to implement affirmative action programs that have legal integrity, that have educational integrity, and moral integrity. This program was not one of them.

JIM LEHRER: Is that how you read what the court did?

CLINT BOLICK, Institute of Justice: I commend Ted for finding a silver lining for the status quo. The Clinton administration was continuing to defend this program. They asked the Supreme Court to take the case. I think the fact that the Supreme Court said that it was not going to review this decision really says that the Supreme Court thinks that it’s spoken very, very clearly. And in an unbroken line of decisions, it has said that racial classifications can be used only as a last-gasp effort to remedy past discrimination. Then it will almost never uphold a racial classification. The reality is unfortunately this University of Texas program is not unique in the slightest. Racial preferences pervade higher education today, and I think that the court’s decision not to disturb the University of Texas ruling striking this down means, hopefully, the beginning of the end for racial classifications.

JIM LEHRER: Well, the Fifth Circuit decision said that race-based admissions policies were unconstitutional, did it not?

MR. BOLICK: That’s right.

JIM LEHRER: Do you dispute that, that that was the Fifth Circuit’s original decision that the court did not overturn today?

MR. SHAW: That’s right. Two judges of the Fifth Circuit on the panel reached out and decided an issue that didn’t have to be decided, i.e., that Bacche, the case that says that race can be taken into account, was no longer good law. A lower federal court does not have the authority to overturn the Supreme Court. It could not do so. Now, Clint, of course, has an agenda and a mission, but the Justice Department was not defending, no one was defending the particular program that was at issue in 1992. That had been abandoned by the State of Texas, and at this point, the affirmative action program that was at issue was not the one under which these plaintiffs applied to law school.

JIM LEHRER: Well, the technicalities aside, the legalities aside, each of you have an agenda on affirmative action. You think affirmative action should continue, you don’t–you’re not so sure it should.

MR. BOLICK: I think the government should get out of the racial classification business once and for all and get on to affirmative action that doesn’t discriminate on the basis of race or gender.

MR. BOLICK: No question. The Fifth Circuit ruling is one of the most vibrant rulings declaring why we should not be taking race into account. A woman, Sheryl Hopwood, was discriminated against in admissions. People were leap-frogged above her.

JIM LEHRER: She was white?

MR. BOLICK: She was white–solely on the basis of her skin color–she would have been admitted apart from her skin color. This is the way these programs operate throughout higher education.

MR. SHAW: That’s simply not the case.

MR. BOLICK: They differ really only as a matter of degree. Then why so much terror among universities in saying they’re going to have to chase away the business–

MR. SHAW: Let me explain why that’s not the case, if I may.

JIM LEHRER: All right.

MR. SHAW: Let me explain why that’s not the case, if I may. First of all, this is a program that was implemented by an institution with a history of racial discrimination against African-Americans and Latinos. Only seven percent of the student population at the law school is black. It is a state-supported institution, and all of the citizens of the State of Texas support that law school. Secondly, to say that Sheryl Hopwood, who maybe she should have been admitted, maybe she shouldn’t have been — that’s the nature of the admissions process, but to say that she was declined admission on the basis of race is simply just a wild distortion. Here’s why. Over 100 white students with lower test scores were admitted to the law school. Over 100 white students with lower test scores.

JIM LEHRER: Than she had?

MR. SHAW: Thank she had. And so it is impossible to say that she was declined admission solely on the basis of her skin color. That’s not what happened.

JIM LEHRER: Now, didn’t the Fifth Circuit, as I read the Fifth Circuit decision today, it said that you can use all kinds of decisions–all kinds of reasons to, to admit somebody–the fact that your father or your mother went to the law–all kinds of things–but you cannot use race. Is that how you read the Fifth Circuit decision as well?

MR. SHAW: Well, the Fifth Circuit decision, no question, is a radical decision, and that’s why Clint is happy with it. But here’s–here’s the problem with that. We have all kinds of other factors taken into account, but all of a sudden, in spite of the history of racial discrimination in this country and the continuing significance of race in this country, the court is saying race has no significance when it comes to trying to remedy that history or provide full opportunity. The fact is, is that race continues to be an important issue. The question isn’t whether we see race in this country. The question is whether we use it as an inclusive tool, or whether we use it to exclude. The fact of the matter is that in this case, this affirmative action program was poorly crafted, but we still should consider race where it is appropriate as one factor among many to make sure we have an inclusive academic environment.

JIM LEHRER: Let me see if I can get some agreement on process now. What is the practical effect? Forget whether you think it’s a great idea, or you think it’s a lousy idea, or whatever, whatever this decision. What is the practical effect of what the Supreme Court did today?

MR. BOLICK: What I hope the practical effect will be is that colleges instead of using racial preferences are going to start solving the underlying problems. When we have 50 percent dropout rates in inner city high schools, when we have the National Association of Educational Progress saying that 12 percent of black high school seniors are illiterate in reading, that is a serious problem, and we’re going to continue to see racial disparities. That is what affirmative action ought to address.

JIM LEHRER: You hope that will be–but under this ruling today, they don’t have to–they don’t have to suddenly tomorrow or today change their policy because of the ruling, do they?

MR. BOLICK: –that’s only, only within the Fifth Circuit do they have to change their policy.

JIM LEHRER: Which is Texas, Louisiana, and Mississippi.

MR. BOLICK: That’s right. But the problem is I’m afraid it’s going to be business as usual with people like Ted Shaw defending the status quo.

JIM LEHRER: What do you think is the practical effect on this?

MR. SHAW: The practical effect of this decision is that the law in the Fifth Circuit is going to remain murky, but the rest of the country is free to implement affirmative action, if it’s properly drawn pursuant to the Bacche decision 20 years ago. In the meantime, in the Fifth Circuit, obviously, there are going to be more challenges. The Clint Bolicks of the world–they’re not going to go away. We’re going to be back before the Supreme Court, uh, at some point with another challenge, and perhaps they’ll take it. But the effect of this decision today is simply to decline to endorse this radical view of the Fifth Circuit that race can’t be taken into account.

JIM LEHRER: Do you agree?

MR. BOLICK: If it was so radical a view, Jim, the Supreme Court would have taken this case. Mr. Shaw has not won a racial preference case in the Supreme Court in a long, long time.

MR. SHAW: Well, I don’t litigate racial preference cases.

MR. BOLICK: Well, I’m referring to your side on this issue.

JIM LEHRER: But do you agree with Mr. Bolick, Mr. Shaw, that the kinds of things that he say–he says some schools might do now, that this ruling today does not require them to do it, except in those three states, right?

MR. SHAW: Well, to the extent we’re talking about primary and secondary schools and the problems there, sure, there are problems there. One of the anomalies in this case is that the Fifth Circuit recognized that there might have been problems that were related to the history of continuing discrimination and, and they declined to address that as a basis for a remedy that would justify the affirmative action program. Now Clint hasn’t said anything about that that is meaningful, I think. The fact of the matter is that these institutions are getting students from these public schools that have suffered as a consequence of discrimination and until that problem is done away with, we’re going to continue to need affirmative action. But quite aside from the history of discrimination, we have an issue of diversity, we have an issue of full access to educational opportunity. I don’t think the country wants to turn the clock back and have these institutions be all white again.

JIM LEHRER: How do you feel about that?

MR. BOLICK: Well, I think that the United States government has been in the business of racial discrimination for too long. We have got to stop classifying people–

JIM LEHRER: You mean through affirmative action?

MR. BOLICK: Well, through affirmative action most recently, but the fact of the matter–

JIM LEHRER: Discriminating against white people.

MR. BOLICK: Right now, government discriminates against both blacks and whites, depending on–depending upon the particular issue. It ought to get out of that business and on to the more serious business of ensuring equality of opportunity. But so long as race remains a government policy tool, it’s going to be used and misused.

JIM LEHRER: Do both of you agree that what this seems today, that there is going to be another major case on this issue of affirmative action going to the Supreme Court and the Supreme Court probably will hand down a major decision on this sometime soon?

MR. SHAW: That’s right. I agree, and any first- year law student knows that the denial of review doesn’t have anything to do with the merits of a particular case. So this is going to be fought another day.

MR. BOLICK: So long as the government remains recalcitrant and ignoring Supreme Court decisions that say get out of the race classification business, we probably will have to see some more decisions.

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